The current state of net neutrality is… who knows?

The past couple of days have seen contradictory reports about the state of the Federal Communications Commission's push for network neutrality, all culminating yesterday when the FCC announced that it had called off closed-door net neutrality talks between major industry players such as AT&T, Comcast, Verizon and Google. Net neutrality refers to the principle that ISPs should not be allowed to block or degrade Internet traffic from their competitors in order to speed up their own.

Since the flurry of activity surrounding net neutrality yesterday was often confusing, let's try to pin down what we know.

The New York Times got the ball rolling two days ago when it reported through anonymous sources that Google and Verizon were near a deal that would let Verizon "speed some online content to Internet users more quickly if the content's creators are willing to pay for the privilege." While the deal between Verizon and Google was separate from the talks the FCC had been having with major industry players, the newspaper noted the deal between two major industry players "could upend the efforts of the Federal Communications Commission to assert its authority over broadband service."

It didn't take long for net neutrality advocates for sound the alarm, as Free Press President Josh Silver wrote at the Huffington Post that the Verizon-Google deal would mark "the end of the Internet as we know it." Google, which has traditionally been viewed as a proponent of net neutrality and has worked with consumer advocacy groups to press for net neutrality in the past, quickly denied that it had reached any sort of deal with Verizon. The FCC, fearing a backlash from consumer groups over its backroom negotiations, soon after called off its separate talks with industry leaders.

So where does all this leave network neutrality? The answer is that no one really knows, although the commission could always go back to its previous plan outlined by FCC Chairman Julius Genachowski this past May, where the commission would reclassify ISPs as common carriers while at the same time insisting that ISPs be exempt from the vast majority of regulations in the current common carrier rules. But this plan has run into a buzzsaw from both the telecommunications industry and from members of Congress in both parties, who implored the FCC to drop its reclassification plan and instead either work with Congress to get net neutrality rules or simply drop the subject all together.

How the FCC got here

How did the FCC find itself in its current messy predicament, you ask?

Well, the push for net neutrality began in 2005, when incumbent telecom carriers successfully lobbied the FCC to repeal common carrier rules that required the incumbents to allow ISPs such as EarthLink to buy space on their broadband networks at discount rates. This doesn't mean that the FCC abandoned regulating ISPs' traffic management practices, however as the commission had been regulating carriers in an ad hoc fashion since 2008 when it voted to bar Comcast from using peer-to-peer traffic management practices that target individual protocols for slowing or blocking. At the time of the ruling, the FCC was chaired by Kevin Martin, who had been appointed by then-President George W. Bush.

Last year, new FCC chief Genachowski tried to expand the commission's role in regulating ISPs' traffic management practices by proposing two new rules that would bar carriers from blocking or degrading lawful Web traffic and that would force carriers to be more open about their traffic management practices. Any hope of ever enforcing those rules came to a screeching halt this past April, however, when the Washington, D.C., appeals court said that the FCC did not have the authority to regulate ISP network management under its current legal framework.

This left the FCC with three options: It could leave ISP traffic management practices essentially unregulated; it could go to Congress and ask for a new law that explicitly gave the FCC the duty to regulate ISPs' behavior; or it could reclassify ISPs as common carriers and apply the same rules to ISPs that it applies to phone companies. Genachowski had decided to go with the third option, although he insisted that ISPs should not be subjected to all the rules and regulations that apply to telephone companies.

But this summer, after experiencing resistance to the reclassification plan from Congress, the FCC opened up negotiations with major industry players to try to come to a common consensus on traffic management regulation. Among other things, it has been rumored that the carriers would be willing to accept net neutrality restrictions on their wireline networks if the FCC agreed to let traffic management on wireless networks go unregulated. Now that those talks have collapsed, however, the future of net neutrality is once again up in the air.

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